This is another in a series of articles by the Reporters Committee for Freedom of the Press covering legal issues that affect journalists. RCFP’s Ethics & Excellence in Journalism Foundation Fellow Kimberly Chow wrote this article.Were media lawyers asleep at the wheel when a major whistleblower case came through the Supreme Court this term? While all eyes were turned on Jim Risen and efforts to revise Justice Department policies on when it subpoenas reporters, were we missing the potential for a major precedent affecting sources?
At first glance, the ruling in January in favor of federal air marshal Robert MacLean, who leaked information to an MSNBC reporter, looks unremarkable, and it received little attention from media lawyers at a time when the focus was on Risen.
The crux of the Court’s decision was that a Transportation Security Administration ban on the unauthorized disclosure of sensitive security information was a regulation, not a law. But the broader holding – that agencies can’t just pass regulations that insulate themselves from whistleblowing – is much more striking. In reinforcing the federal protections given to whistleblowers, the Court recognized the valuable role whistleblowers play in holding the government accountable. By extension, the news media that reports on their disclosures also scored a victory.
Hogan Lovells partner Neal Katyal, who represented MacLean on a pro bono basis, called the decision “very significant protection for whistleblowers.” But he also pointed to the key ways in which it advances public interest journalism.
“The MacLean decision recognizes that the media can and does play an important role in uncovering government corruption, abuse, and, frankly, inanity,” said Katyal, a former acting U.S. Solicitor General. “This is a first-rate example of how the media helped get Robert MacLean’s message out and potentially stop a catastrophic decision to remove air marshals at a time of high terrorist threat.”
Under federal law protecting whistleblowers, employees who disclose information revealing violations of any law, rule, or regulation or a substantial and specific danger to public health and safety are shielded from termination for their actions. There is an exception for disclosures that are specifically prohibited by law. In 2002, the TSA promulgated regulations banning the unauthorized disclosure of “sensitive security information,” which included details of federal air marshal missions.
Along came federal air marshal MacLean, who became alarmed in 2003 when TSA cutbacks resulted in an announcement that no air marshals would accompany overnight flights from Las Vegas from July to August of that year. With the cutbacks coming in the wake of Department of Homeland Security warnings of the imminent threat of further terrorist airplane hijackings, MacLean tried to alert a supervisor and administrators to the danger of such a decision, with no success.
He then contacted an MSNBC reporter about the cancellations, and when the TSA faced resulting backlash from several members of Congress, it reversed its decision on the Las Vegas flights. But after discovering that MacLean was the source of the leak, the TSA fired him for disclosing sensitive security information without authorization.
The case that ultimately made its way to the Supreme Court hinged on the question of whether MacLean was a protected whistleblower under the federal law, or whether he had given up that protection by whistleblowing in defiance of a law, which in this case, DHS argued, was the TSA regulation banning disclosures.
At the Supreme Court, Chief Justice Roberts and Justices Scalia, Thomas, Ginsburg, Breyer, Alito, and Kagan all agreed that the TSA regulation was not a law. As evidence, they pointed to other examples in the whistleblower statute when Congress referred to a “law, rule, or regulation.” And they showed that they understood the value of the whistleblowing process when they held that calling regulations laws would frustrate the purposes of the whistleblower statute by allowing agencies to protect themselves from it merely by making up regulations that specifically prohibited all whistleblowing.
“The Court was categorical in saying that agencies can’t write their own exceptions to the Whistleblower Act,” Katyal emphasized.
The Court’s decision resoundingly supports the right to disclose official wrongdoing that is illegal or puts the public in substantial danger. Members of the news media work closely with whistleblowers to make their revelations public. But for whistleblowers to feel comfortable telling the media their concerns, they need to know that the law will protect them. The Court’s clampdown on agencies’ attempts to erode that protection is a victory for accountability.
The ripples from the Court’s holding will be felt around the government. With the government increasingly citing national security concerns as reasons to prosecute whistleblowers such as Edward Snowden and Chelsea Manning, it’s important for potential leakers to understand where their protection begins and ends. While Manning has been prosecuted under the Espionage Act, a law passed by Congress, the Court’s clarification that only laws and not regulations can prohibit whistleblowing is a significant step in favor of government accountability.
At the end of the day, MacLean’s case was not one where the media was likely to play an amicus or other kind of supporting role because the issues were not within its particular areas of expertise. So the snoozing is excused. But news organizations – and the public – stand to benefit from his victory.